Fifth Circuit Blog

Recent Posts from Fifth Circuit Blog

• SCOTUS Snubs Seale; Stevens, Scalia Squawk

  Today the Supreme Court dismissed the certified question from the Fifth Circuit in United States v. Seale, concerning the statute of limitations applicable to the case. The Court offered no explanation for its action, which…

• Bad Border Patrol Stop Results in Suppression Victory

  United States v. Rangel-Portillo, No. 08-40803 (5th Cir. Oct. 26, 2009) (King, Davis, Benavides)Case law concerning traffic stops—and roving Border Patrol stops, in particular—breaks so heavily in favor of law enforcement that successful suppression motions…

• "Altered or Obliterated Serial Number" Defined for Purposes of §2K2.1(b)(4)

  United States v. Perez, No. 08-40917 (5th Cir. Oct. 16, 2009) (Reavley, Smith, Dennis)Have you ever wondered what it means for a firearm's serial number to have been "altered or obliterated" for purposes of guideline…

• Another Relevant Conduct Victory; Counterfeiter Not Responsible for All Recovered Bills Made from Same Image He Used

  United States v. Livingston, No. 08-10655 (5th Cir. Sept. 9, 2009) (per curaim) (unpublished) (Benavides, Dennis, Elrod)A helpful reader alerted me to this nice unpublished relevant conduct win, which actually came out a few weeks…

• Excellent Opinion On Relevant Conduct; Rejects Speculative Findings and Incorrect Allocation of Burden of Proof

  United States v. Rhine, No. 08-10502 (5th Cir. Sept. 29, 2009) (Wiener, Garza, Elrod)Stop me if you've heard this one before: defendant is convicted of a drug charge based on a relatively small amount of…

• Fives Extend Mezzanatto, Hold Defendant Can Waive Right to Keep Prosecution from Using Plea-Discussion Statements In Case-In-Chief

  United States v. Sylvester, No. 08-30586 (5th Cir. rev. Sept. 21, 2009) (Higginbotham, Smith, Southwick)As you know, FRE 410 and Federal Rule of Criminal Procedure 11(f) render statements made during plea discussions inadmissible at trial.…

• Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With Fifth

  For over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in…

• Why the Departure/Variance Distinction Matters, Part Two

  United States v. Gutierrez-Hernandez, No. 08-20620 (5th Cir. Aug. 28, 2009) (King, Higginbotham, Clement)Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than…

• Suspended Sentence Not a "Sentence Imposed" for §2L1.2 Purposes, But Troubling Plain Error Analysis

  United States v. Rodriguez-Parra, No. 08-40708 (5th Cir. Aug. 26, 2009) (Higginbotham, Smith, Southwick)There's good and bad in this opinion. The good is that a suspended sentence isn't a "sentence imposed" for purposes of the…

• Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation Sentence

  United States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutively to…